Possibility of transferring the concession on the basis of Geological and Mining Law
Article 36 of the Geological and Mining Law (hereinafter: PGG) provides for the possibility of transferring a concession to another entity. This solution is permissible provided that the transfer of the concession is not in opposition to the public interest, in particular related to the security of the state or environmental protection, including the rational management of mineral deposits. The initiation of proceedings regarding the transfer of the concession takes place at the request of the entity applying for this transfer. The competent administrative authority shall transfer the concession by way of an administrative decision, issued always with the consent of the entrepreneur to whom the concession was granted.
The entity to which the concession is transferred must meet the statutory requirements specified in the regulations on starting business activity. In addition, the entity must:
- agree to accept all the conditions set out in the concession;
- to the extent necessary for the performance of the intended activity, demonstrate the right to use land, mining exploitation or a promise of obtaining these rights;
- to the extent necessary to perform the intended activity, demonstrate the right to use geological information;
- demonstrate that it is able to meet the requirements related to the implementation of the intended activity.
The parties to the proceedings regarding the transfer of the concession are the entrepreneur and the entity that is applying for the transfer of the concession. However, it cannot be ruled out that the social organization will participate in such proceedings.
The transfer of concession also transfers rights and obligations resulting from other decisions issued on the basis of the PGG. These decisions should include any decisions approving the geological documentation, decisions approving the geological work plan or decisions approving the mining plant operation plan. The mining plant decommissioning fund in principle does not go directly to the buyer. The acquirer of the concession must therefore create such a fund before the transfer of the concession. As indicated in the doctrine, no changes to the terms of the concession, e.g. its duration, additional obligations of the entrepreneur, the extent of the area or the mining area, or extending the deposit to other minerals are allowed within the framework of proceedings to transfer the concession. The decision to transfer the concession to another entity is a related decision. This means that the administrative body is obliged to transfer the concession to another entity if all the requirements specified in the regulation of Art. 36 PGG were met.
However, it is also important to remember about the changes introduced by the legislator in the abovementioned Art. 36 PGG being restrictions on the possibility of transferring the rights to concessions regarding minerals covered by the mining property, which limitations will be detailed in the next article.